This statement was originally published on article19.org on 12 June 2018.
On 7-8 June 2018 ARTICLE 19, International Press Institute (IPI) and Reporters Without Borders (RSF) observed the fifth hearing in the case against eleven journalists and columnists writing for Zaman newspaper at the Serious Crimes Court in Istanbul. The journalists face various coup or terror-related charges, with five facing aggravated life-sentences. In light of the prosecutor's failure to produce sufficient evidence in this manifestly political case, we call for the acquittal of all defendants and the immediate release of the four who are still being detained.
Similarly to the previous hearing held 10-11 May, 7-8 June was scheduled to be the final hearing of the case. However, Şahin Alpay's final defence statement was not heard and a further hearing was scheduled for 5-6 July, when a verdict is expected. On Thursday, the court heard the defence statements of İbrahim Karayeğen, Lalezer Sanibrahimoğlu and Ali Bulaç. The hearing continued on Friday, with the final defence statements of Ahmet Turan Alkan and Nuriye Ural. Five final defence statements were heard at the previous hearing.
Lack of sufficient evidence
The prosecutor has repeatedly failed to produce sufficient evidence to justify the harsh charges against the defendants.
The initial indictment presented general information about the Gülen Movement, the organisation the Turkish government accuses of orchestrating the 2016 coup attempt. The indictment explains the movement's alleged functioning as a terrorist organisation, internal hierarchy and nature of the alleged media arm of the organisation.
Incoherent references to defendants are scattered throughout the indictment. In the case of Lalezar İbrahimoğlu, only one sentence in the indictment referred to her column and no other evidence was presented. No evidence against Orhan Kemal Çengiz was presented in the indictment. While additional evidence was included (including more references to articles and columns) in the twelve thousand pages of annexes attached to the indictment, these were not clearly referenced in the indictment, creating an unreasonable task for defendants to produce an adequate defence. This is of particular concern for those who were held in pre-trial detention with restricted access to their lawyers and to computers. ARTICLE 19 and RSF have attended each hearing throughout the trial and confirm that no additional evidence was presented or examined prior to the issuing of the Prosecutor's final opinion at the 3rd hearing of the trial in April 2018.
The Prosecutor's final opinion
The prosecutor's final opinion presented charges and what it considered to be evidence against each defendant. However, this opinion merely served to demonstrate even more clearly the lack of substance to the case overall. The prosecutor argues that the defendants' association with Zaman newspaper is evidence enough of guilt and lists as evidence their articles, columns, social media posts or TV interviews in which they criticised the government and its policies; wrote about government corruption; criticised police investigations against Gülen-affiliated banks, media outlets or civil society organisations. The opinion also states as an argument that the defendants failed to criticise the Gülen movement. For one or two defendants, the prosecutor also delineates evidence unrelated to their freedom of expression, for example possession of tokens alleged to demonstrate affiliation with the Gülen movement. However, this evidence does not appear sufficient to justify the serious charges in the case.
The charges and evidence against the defendants in the final opinion of the prosecutor can be summarised as follows:
. Şahin Alpay, Ahmet Turan Alkan and Mustafa Ünal are all facing aggravated life sentences for charges of 'attempting to overthrow the constitutional order through violence and force'. For all three defendants the only evidence mentioned in the prosecutor's final opinion relates to their columns, speeches and articles, in addition to their having written for Zaman newspaper. No evidence of incitement to violence was presented.
. Ali Bulaç also faces an aggravated life sentence for charges of 'attempting to overthrow the constitutional order through violence and force'. In addition to his articles, columns and speeches, the prosecutor listed his association with Zaman and the Journalists and Writers Foundation, possession of books or photographs of Gülen, communicating with other members, holding an account with Bank Asya and supporting that bank when it was in financial crisis by transferring money to the bank following an alleged call by Gülen for his supporters to do so.
. Mümtazer Türköne also faces an aggravated life sentence for charges of 'attempting to overthrow the constitutional order through violence and force'. The prosecutor refers to his articles and columns, communications with other members of a terrorist organisation via Twitter, accessing and using of banned Twitter accounts associated with Gülen-affiliated media.
. İbrahim Karayeğen and Mehmet Özdemir face 10-15 years in jail on charges of 'leading a terrorist organisation'. The evidence presented against Karayeğen includes use of Bylock messaging application, possession of one US Dollar [allegedly a symbol of affiliation with the Gülen movemet], attempting to leave the country, social media shares and possession of photographs of Gülen. The evidence against Özdemir appears to be solely his position as editor in chief of Zaman newspaper. However, in his defence statement he clarified that he was in fact managing editor without responsibility for determining editorial policy.
. Lalezar Sanibrahimoğlu and Nuriye Ural face sentences of five to ten years in prison for 'aiding a terrorist organisation without being a member'. The only evidence presented against them in the final opinion is their articles, writings and expression.
. Orhan Kemal Çengiz and İhsan Dağı face one to five years in prison on charges of 'terrorist propaganda'. The only evidence presented against them is based on their expression. However, Çengiz was also detained at the airport (prior to being charged) and the Prosecutor lists this as an attempt to flee the country and uses it as evidence against him.
Freedom of expression
ARTICLE 19, RSF and IPI note that the right to freedom of expression must necessarily include the freedom to criticise the government, its actions and policies as a fundamental part of the role of the media as a public watchdog. Any restriction on the right to freedom of expression for the purpose of protecting national security must demonstrate that the expression directly and clearly incited violence. Journalists must be free to carry out their research on matters of public interest, which may include communicating with people accused of membership in a terrorist organisation or possessing books or photographs for research purposes.
In the case of Şahin Alpay, ARTICLE 19 examined the articles and columns in question and found no evidence of incitement to violence. The Constitutional Court reviewed the evidence in his case and concluded on 11 January 2018 that the evidence was insufficient to justify his pre-trial detention. The European Court of Human Rights (ECtHR) also endorsed this view in its decision on 20 March 2018. Many of the defendants referenced these judgments in their defence statements, arguing that the same principles apply to their cases.
ARTICLE 19, IPI and RSF repeat their call for all defendants to be acquitted and the remaining four detained defendants to be released in light of the political nature of the trial, the violations of the right to freedom of expression acknowledged by the Constitutional Court and the European Court of Human Rights, and insufficient evidence in general.